Self-Styled Campaign Finance “Reformers” Jump the Shark

Self-Styled Campaign Finance “Reformers” Jump the Shark

Ten Stunts, Antics, and Exploits That Show Many Anti-Free Speech Activists Have Lost It

By Luke Wachob

Introduction

What do activists do when the government isn’t prioritizing their cause? What does the head of a federal agency do when she doesn’t get her way? What do “good government” crusaders do when corruption is uncovered in their state? When the cause that unites them is “getting money out of politics,” you might be surprised.

This Issue Brief tells the alarming story of radical activists and government leaders pushing for new restrictions on political speech in the wake of Citizens United v. FEC – and doing so in the most bizarre ways imaginable. From unsanctioned protests at the Capitol, to quixotic presidential campaigns, to attempting to amend the First Amendment to the Constitution, these so-called “reformers” are far more extreme than they first appear.

In the wake of Citizens United v. FEC and SpeechNow.org v. FEC, “reformers” decried super PACs as a harbinger of the death of American democracy itself. Naturally, the solution was to form one of their own.

Harvard professor and campaign finance activist Lawrence Lessig teamed up with Republican political strategist Mark McKinnon to create Mayday PAC in 2014.[1] Mayday was touted by Lessig as “the super PAC to end all super PACs” and raised an impressive $10 million dollars in a matter of weeks.[2]

Mayday received a bevy of media attention as observers puzzled at the irony of self-styled “reformers” attempting to reduce the influence of money in politics by influencing politics with money. The fanfare turned to mockery when Mayday demonstrated that their theory of money buying elections was wrong. Despite spending $7.5 million on only eight races, just two of the candidates supported by Mayday won, and they were in safe districts where Mayday couldn’t even attempt to claim credit.[3]

Lessig himself admitted defeat in a post-election blog post titled simply, “We lost. Badly.” “There’s no spinning this,” he wrote.[4] A Politico feature on Mayday’s whiff ran with the headline, “How to waste $10 million.”[5] It turns out that money can’t buy elections if the message and messenger are no good– who knew?

2) Man Lands Gyrocopter on U.S. Capitol Lawn to Protest Money in Politics

Florida postal worker Douglas Hughes decided to make a statement about money in politics by flying his one-man gyrocopter over downtown Washington, D.C. – some of the most restricted air space in the country – and landing in front of the Capitol Building with the intent to deliver letters to members of Congress. Despite the obvious dangers of such a delusional stunt, “reformers” leapt to praise Hughes, and the media offered his message a platform. Hughes, whose flight to fight “money in politics” took him within 1,400 yards of a Delta airliner,[6] was charged with six felony and misdemeanor charges and ultimately sentenced to 120 days in jail.

Reckless stunts are nothing new in political activism, but how Hughes was received by his fellow “reformers” was truly shocking. Mayday’s Lessig “thanked” Hughes for “his service.” The pro-reform PR firm ReThink Media offered him their assistance, pro bono.[7]The Washington Post gave him op-ed space,[8] and NPR interviewed him for Morning Edition.[9] Not all the response was kind, however. David Letterman referenced Hughes during a “Top Ten” segment of The Late Show, joking that the No. 1 question “dumb guys” ask the President is: “When will you return my gyrocopter?”[10]

Those who know Hughes personally and cared for his safety appeared to have a bit more perspective: “My biggest fear was he was going to get killed,” said Mike Shanahan, a co-worker and friend of Hughes, in an interview with the Tampa Bay Times.[11]

3) 54 U.S. Senators Vote to Amend the First Amendment

Arguably no piece of political writing in American history is as famous or revered as the First Amendment to the U.S. Constitution. It reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It was, therefore, somewhat shocking when in 2014, 54 Senators voted to effectively add an asterisk to the First Amendment that would have removed crucial protections for most forms of political speech. Dubbed the Udall Amendment after its chief sponsor, Senator Tom Udall, the misguided attempt by incumbent politicians to regulate political speech – and the money that funds it – was written so broadly that even supporters of the constitutional amendment admitted it was “entirely impossible to predict” its impact.[12] Despite this, the unprecedented effort to amend the First Amendment went all the way to the Senate floor before being rejected. That 54 Senators felt this effort was worthwhile is an indication of how far anti-speech views have spread.

It can be hard to believe that government agencies in America would persecute people for their political beliefs. Much less so that anyone would defend it. We were given a rude wake-up call in 2011 – as were conservative citizens in Wisconsin – when SWAT teams descended on the homes of Cindy Archer and other activists under the cover of darkness.

The same pattern played out in the homes of conservative citizens across the state. Not only were their homes raided and their possessions taken, they were placed under a gag order preventing them from telling anyone what was going on. And for what purpose? These families hadn’t violated anyone’s rights or stolen anything. They weren’t drug kingpins.

No, the raids and gag orders were carried out as part of an undercover, sweeping investigation into nonprofit groups that had advocated for changes to the collective bargaining rules for public employee unions in the state. Their “crime” was voicing their political views near an election. Observers were appalled, and the Wisconsin Supreme Court shut down the investigation, explaining, “It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.”[14]

One group of people, however, didn’t see the problem: campaign finance “reformers.” Instead of criticizing the aggressive tactics used by police and prosecutors, they criticized the Wisconsin Supreme Court for putting an end to the abuse. The Wisconsin Democracy Campaign called the ruling “downright dangerous,”[15] while The Brennan Center for Justice cried that it “threatens fair and transparent elections.”[16]

Regardless of one’s opinion on campaign finance regulations, the methods used to investigate and prosecute allegedly illegal conduct should matter. Sadly, some anti-speech activists appear to think all investigations and all tactics are acceptable, so long as they are aimed at reducing “money in politics.”

5) Eliminating Bipartisanship in Campaign Finance Enforcement

The Federal Election Commission (FEC) was created in the wake of the Watergate scandal with fresh memories of how Richard Nixon’s top aides compiled an enemies list so that “we can use the available federal machinery to screw our political enemies.”[17] This created a conundrum. How should campaign finance laws be enforced without letting a future Nixon-like president use such laws to harm political opponents? The solution was to make the FEC an independent agency with a six-member body, of which no more than three members may come from a single political party. This would minimize the risk that Republicans and Democrats would be able to use the agency as a partisan weapon against the other party.[18]

Unfortunately, these fundamental protections against government abuse are regarded by today’s “reformers” as roadblocks to even stricter regulation of political speech. In March 2016, Senator Tom Udall introduced legislation that would abolish the bipartisan FEC and replace it with a 5-member agency, whose members would be appointed by the president. Opponents of free political speech quickly lined up to support the bill, including the Campaign Legal Center, Common Cause, Democracy 21, Issue One, People For the American Way, Public Citizen, Rootstrikers, and U.S. PIRG.[19]

Replacing the functioning, if imperfect, bipartisan FEC with a purposefully unbalanced 5-member body would once again allow one party to dominate the other, harkening back to the corrupt ways of the Nixon era. As long as the result is greater regulation, some reformers seem more than willing to make that trade.

6) FEC Commissioner Attempts to Undermine Her Own Agency from Within

Activist critics of the FEC won a coup in 2013 when President Obama appointed Ann Ravel, a self-described “activist at heart,” to the Commission.[20] Rather than work with her colleagues, Ravel has repeatedly used her bully pulpit to discredit the agency from within.

Ravel’s intentions became clear in a May 2015 interview with The New York Times, in which she publicly blasted her agency as “worse than dysfunctional.” The Times reported, after just five months as Chair of the Commission, “[Ravel] said she had essentially abandoned efforts to work out agreements on what she saw as much-needed enforcement measures… She said she was resigned to the fact that ‘there is not going to be any real enforcement’ in the coming election.”[21]

In an interview with NPR later that year, Ravel said her cynicism towards the FEC developed even quicker: “I actually realized after about a week or two [after coming to the FEC] that what was being done was essentially nothing.”[22]

Ravel’s efforts were not limited to the media. In an October 2014 “listening tour” that happened to take place in swing states weeks before the midterm elections, Ravel claimed that Republican FEC Commissioners “do not believe in enforcement” of federal campaign finance laws.[23]

Criticism of the FEC is never in short supply among activists pushing for new speech restrictions, but it’s another matter entirely to hear those talking points echoed by members of the Commission.

7) FEC Commissioners Petition Themselves

“Two Democratic members of the Federal Election Commission, who say they are frustrated by the agency’s failure to rein in campaign-finance abuses ahead of the 2016 presidential race, are making what amounts to a drastic move Monday in the staid world of federal election law.” That’s how USA Today broke the unusual and unprecedented story of two sitting FEC commissioners filing a petition with their own agency.[24] In the FEC’s 40-year history, this was a first.

The petition was filed by Commissioners Ann Ravel and Ellen Weintraub in their “personal capacity” as private citizens. It called for a host of new rules that the Commissioners could have simply proposed themselves in the normal order of business. By petitioning, however, Ravel and Weintraub could not simply be voted down – there would now be a public comment period that they hoped would shame their fellow Commissioners into radical action. “While it’s extremely difficult for the FEC to actually accomplish some of the tasks entrusted with us,” Ravel said, “the public will have an opportunity to raise their concerns about the campaign-finance system and disclosure.”

The media, which rarely resists a story of infighting at the FEC, were equally surprised by the unprecedented move. USA Today called the petition “novel” and “unorthodox.” The Atlantic upgraded that label to “highly unorthodox.”[25] The left-wing Mother Jones called it “a sign of desperation” and “a sign of how bad things have gotten.”[26]Washington Post columnist Ruth Marcus called it an “extraordinary move” while granting that it was “a stunt, doomed to fail.”[27]

That last remark proved accurate. Ravel and Weintraub’s petition did not lead to new speech regulations – serious policy changes cannot be accomplished with publicity stunts.

8) “Reformer” Presidential Candidate Promises to Resign if Victorious

What do you call a presidential candidate who doesn’t want to be President? For about ten weeks in 2015, you called him Larry Lessig.

After the disappointment of Mayday PAC, the Harvard professor and campaign finance activist announced in July 2015 that he would campaign for the Democratic nomination for President in 2016 – if he could raise $1 million by Labor Day.[28] Lessig, who has proven to be an adept fundraiser, succeeded and kicked off his campaign in early September.[29]

But his candidacy had a twist. If elected, Lessig promised to work single-mindedly towards the passage of a package of new campaign finance and election laws. After an as-yet unwritten bill magically passed a reluctant Congress, Lessig would resign. Every other issue, from foreign policy to education to healthcare and beyond, would be up to his Vice President. Asked who this immensely powerful person would be, Lessig offered only that his VP would be a progressive Democrat.

Lessig eventually dropped the gimmick, but the campaign failed anyway. Ironically, for all Lessig’s insistence that money was corrupting politics, raising money was his most successful attribute. His campaign was eventually doomed by the internal politics of the Democratic Party, and Lessig’s own failures as a candidate. Once again, the role of money in politics proved more nuanced than “reformers” like to claim.

9) Protesters Advertise “Let’s Get Arrested to Save Democracy”

In 2016, a coalition of over 100 anti-speech and left-leaning groups organized a mass protest march from Philadelphia to Washington, D.C., culminating in a week of sit-ins on the steps of the U.S. Capitol Building. “We write at a critical moment for our country,” read an op-ed in The Nation authored by over a dozen organizers. “And we write to ask you to do something difficult and uncommon: to join us in Washington, DC, next April to take a dignified, determined stand for democracy that may result in your arrest.”[30]

The call to action, which was signed by Larry Lessig, Zephyr Teachout, and other leading proponents of restricting the First Amendment, was originally titled “Let’s Get Arrested to Save Democracy.” Eventually, someone in the movement realized that may not have been the best advertisement, and quickly edited the headline to “Let’s Sit-In to Save Democracy.”

The change in branding made the event itself no less absurd. Dubbed the “Democracy Spring,” the protesters intentionally got arrested in the hopes that it would bring media attention to their cause. If only they could decide on a cause. The myriad groups protested for new campaign finance regulations, voting rights reforms, environmental policy changes, criminal justice reform, and more during the course of the week. Ultimately, over 1,000 people were arrested, mostly for “unlawful crowding and obstruction.”[31] No word yet on whether Democracy is now saved, but well, we’re still here, so that’s a start.

Fortunately, this was one time when the media wasn’t fooled by the antics of “reformers.” The week-long event garnered just two brief mentions on network news, both on PBS, lasting a total of 29 seconds.[32]

10) Progressive “Reformer” Wants to Fight “Pre-Corruption”

When longtime New York State Assembly Speaker Sheldon Silver was arrested and charged with a variety of corruption-related offenses, prominent speech regulation advocate and Fordham law professor Zephyr Teachout took to the pages of The New York Times not to condemn Silver’s actions, but to excuse them as an inevitable byproduct of New York’s failure to adopt her radical vision of “reform.”[33] In her view, abuse of power was merely the result of the real problem: legal, voluntary contributions to candidates.

“Think of campaign contributions as the gateway drug to bribes,” Teachout imagined. “The structure of private campaign finance has essentially pre-corrupted our politicians, so that they can’t even recognize explicit bribery because it feels the same as what they do every day.”

One hopes that legislators and government officials everywhere would take offense at the idea that they cannot tell the difference between corrupt acts and ethical behavior. But for some reformers, there is nothing more corrupting than “money in politics.” Not even actual corruption in politics.